Githush

Thursday, January 27, 2005

Kenyan Olympic Bid

It was recently announced that Kenya would be bidding to host the 2016 Olympic games, this would be the first time - if it happens - that an African country would have hosted the Olympics. I am all for giving Africa a chance to host world class events, but I do not believe Kenya would be the right country for it. Kenya has not hosted a world class sporting event in a long time (I believe since the All Africa games in the late 80's) and hosting the olympics is an enormous undertaking. Just ask the Greeks, they spent billions ($15.23 billion excluding infastructure expenditure) on the 2004 event, were bedeviled by delays and other problems and according to the mayor of Athens and head of the organizing committee, Greece is likely to be saddled with debt, for the forseeable future.

In Kenya we are already in a financial crunch, we can not afford to pay our teachers, police and other civil servants a decent wage, we have to rely on foreign governments to balance our budget and spend an estimated 33% of our budget servicing old debts. How then can we seriously be considering a bid for the olympics? Should we not be focusing on fully funding free primary education? or investing in our transport and communication infastructure? What is most ironic, is that we announced our bid for the 2016 games, which is one year after we are menat to have achieved our Millenium Development Goals (MDGs), and the announcement came a couple of days before British Chancellor of the Exchequer, Gordon Brown, announced that Africa is unlikely to meet its MDGs by a wooping 100 years. How misplaced can our priorities be?

Let us keep our eye on the ball. Development of our country should be our primary, secondary and tertiary goal. We should not be distracted by nonsensicle and futile white elephant projects.

Monday, January 17, 2005

Government's End

GOVERNMENTS’S END: WHY WASHINGTON STOPPED WORKING

In this book, the author - Jonathan Rauch - tries to assess the inner workings of the United State Congress. He pays particular attention to the role of interest groups in how government works. He provides a very bleak assessment of the situation in Washington. He begins his assessment by providing a background of the growth of what he call the "Parasite Economy," he then explores the effect of the transfer seeking industry on how government and society works. He goes on to provide an assessment of possible "treatments" for government’s inability to perform effectively (Demosclerosis).

In this review, I intend to trace the authors main points, from the formation and proliferation of groups, the nature of the groups, the effects of group activity and his assessment of what needs to happen in order to remedy the situation. I will then provide and assessment of the author’s claims. With particular attention paid to his portrayal of the nature of the interest group industry. I will conclude with an evaluation of the perceptions I have on groups, after reading Join Me, by Danny Wallace and Government’s End by Jonathan Rauch.

According to the author, the development of interest groups is a natural result of a stable democracy. He argues that all interest groups need a stable environment in order to flourish. It is therefore, a hallmark of democracies to develop interest groups: " ‘The logic of the argument’ Olson wrote, ‘implies that countries that have democratic freedom of organization without upheaval or invasion the longest will suffer the most from growth-repressing organizations and combination.’ And so stable democracies are a natural preserve of what Olson pungently called interest-group depredation." (35) The inherent tendency of democracies to support lobbies, coupled with the increased role that Washington has, and continues to play in society, has contributed to the explosion of interest groups, especially since the New Deal. Increased government activity breeds increased interest group activity. The growth of interest groups has also been fed by and government’s focus on redistributive politics.: "Economic thinkers have recognized for generations that ever person has two ways to become wealthier. One is to produce more. The other is to capture more of what others produce. The former is productive activity - transfer seeking, an investment of time or energy in transferring wealth from other people to oneself." (28) Government is today involved in redistributive politics, moving resources from one area, and moving it to another. This has spurred the development of interest groups to maintain, or increase ones share of the national pie. The fear of losing one’s share, or government enacting legislation that would be detrimental ones interests, force and compel groups to form. And the creation of one interest group, typically compels the development of another, in what the author calls a vicious cycle. Interest groups are therefore, interested not in the good of society, but in their own "special" interest. They will push for the enactment of legislation that favors them, protects them and gives them their "fair" share of the national pie. They insist on the passage of tax-breaks, subsidies and other anti-competitive policies, to ensure they come out on top. Typically at the expense of other groups and technologies that would make society more efficient and competitive. The author provides a multitude of examples to illustrate this point. From the messengers wanting to limit the acceptance of fax machines (fictional) to the all to real attempt by dairy farmers to bar competition from margarine. The author makes a very important point, that though some groups "gain" and others "lose" in this game of lobbying, the "transfer seeking" economy always benefits. Every time one group feels compelled to form a group, or get their "fair" share of the pie, they will rely on lawyers and lobbyists to do the job. Lobbyists always win.

A significant portion of the book is dedicated to an assessment of the negative impact of interest groups on how government works and the quality of its work. The authors makes the point that even though the quantity of legislation coming from Washington has seen an increase, that does not meant that they are solving any problems. In fact, the opposite happens: "As it grows, [interest group industry] the steady accumulation of subsidies and benefits, each defended to perpetuity by a professional interest group, calcifies government. Washington loses its capacity to experiment and adapt and so becomes increasingly prone to failure." (18) A principal result of growth, has been an inability of government to end programs that it created (or reform) programs that it has created, the author gives numerous example of this. From licences for peanut farmers (developed in depression era) to tax breaks for a handful of agora wool farmers in Texas. The government tries to get rid of these programs, but it is very difficult to do so. The author also argues that the investment of time and many in transfer-seeking, means that investment in more productive ventures, is short changed: "Every bit of energy people spend fighting over existing wealth is that much less energy spent on producing more wealth." (73) A necessary result of this is a reduction of rates of economic growth, as has been experienced by Germany, Britain and Japan and will soon be experienced by "economic miracles" like South Korea and Taiwan (37). In essence the author argues that the benefits of lobbying are quite visible and tangible (tax breaks, subsidies, favorable regulations), while the costs (waste, inefficiency, rigidity, complexities and policy inconsistencies) are diffuse and often invisible (102) In this sense the author ascribes to the conservative axiom of the "Visible hand" and "invisible foot" of government.

The ultimate result of the transfer-seeking industry is a general belief in the populace that government is not working: People felt they deserved more, yet they felt they received less, and they didn’t understand why. The more they struggled, the more they felt beset." (10) Trust in government has dropped at the same time, to lows of between 20 and 30 percent.

The author does provide some possible remedies for the situation. He begins by cautioning that the fight for reform would be tough and tough. He believes that only a concerted effort of evolution and not revolution, will stem the torrent of "Demosclerosis." The author argues that there is a need for individuals to change their perception of government, from one that can be used as a tool of social change, and instead come to the realization that government can no longer come up with such radical programs as the New Deal, those days are long gone. And in no little measure, due to the transfer-seeking industry created after the New Deal and other government programs. On a more functional level, the author has three prescriptions that he believes can help alleviate the situation. First, devolve some of Washington’s control to the states and other lesser jurisdictions (241), this would have the effect of scattering the benefits of lobbying further, therefore, reducing the pressure of lobbyists on one level of government. Second, eliminate the incentives for lobbies. That means eliminating subsidies, tax-breaks and programs that favor few groups. This should be combined with an effort to eliminate anti-competitive programs, and goodies from government. The author believes that opening up industry to domestic and foreign competition, will have a positive effect on the situation, by forcing organizations to focus on productive, rather than transfer-seeking activity.

The author provides a pretty dim view of interest groups and their activities and the negative effect they have on government and society as a whole. I found a number of issues the author raised very illuminating. Coming from a third world country, and a recently democratized one, I have always wondered why interest groups do not play a larger role in my society. Mr. Rauch’s discussion of the need for a stable democracy for groups to develop, was very interesting and answered some of my questions on the issue. I was also learnt a great deal form his discussion of subsidies and in particular farm subsidies in America and France. Third world countries, constantly, clamor for a reduction of agricultural subsidies and it is important to realize that it is very difficult to do so. It means stepping on the toes of a rather powerful lobby, that would fight to the death to maintain their subsidies. It would, therefore, serve third world countries to find a way to make themselves and interest group, or find other ways to convince Washington and European capitals to change their policies.

However, I had a couple of problems with the author’s point of view. To begin with, the current system of interest groups, is better than what used to be. It is inherently better to have lobbies that are diffuse, and transparent, than the fat-cat system that was. The current system (though larger) is not as corrupt as the yester-years and this is inherently good for democracy: "while influence peddling was once the province of the privileged, it is now everyone’s game. Americans have achieved the full democratization of the special interest deal: influence peddling for the masses." (52) Moreover, I see no problem with the proliferation of interest, it only means that our leaders have to take in to account the effect of public policy on the gamut of groups in society. This means that policy making becomes a more deliberative and deliberate process, not to be hijacked by radical ideals that may harm large portions of society. This would be in keeping with the wishes of the founders of this nation, who wanted a deliberate process, that emphasized compromise and encompassing the wishes of the minority. I was also disappointed with the author’s negative fixation with lawyers (111-112). I believe that the profession is a noble one, that performs a necessary function in society and works to enhance the effectiveness of society. There may be negative elements within it, that should be no cause to call the whole profession into question.

The two books on interest groups read so far (Join Me and Government’s End) have served to illuminate me further on the issue of interest group. From Wallace’s treatment, I learned that forming a group is not very easy, it takes a lot of time and effort from the entrepreneur. It also takes a great effort to convince people on the necessity for and the need to join one’s group. However, the book does provide a more positive assessment of groups, showing that they can be used for good and not necessarily for transfer-seeking alone. Moreover, they serve to connect peoples from far flung areas with similar interests together and to pool their resources in order to make a positive difference in society. Rauch’s treatment provides a more negative assessment of interest groups. From their focus on transfer-seeking activities, to their negative impact on the economy, government and society as a whole. Interest groups are not formed with the aim of the greater society in mind, but instead the transfer of the states resources to their own special interest.

The books leave me with a better understanding of interest groups. I understand the hardship of forming an organization and the effects groups can have on society. Rauch’s discussion of fear and compulsion, does also serve to inspire me to create an interest group of my own focused on issues concerning Africa. I am of the opinion that government is unlikely to take your issues into account, unless you show them it in their interest. Is that a bad thing, I do not know, it is just how it is.

Closed Chambers

"Closed Chambers..." By Edward Lazarus

This book provides an insider account of how the highest court in the United States works. The author relies on first hand accounts, interviews, Supreme Court records and a wide array of documentary evidence, to weave an intricate web of history, and case law, that illustrates the inner workings of the Supreme court and its idiosyncracies. The principal aim of the author is to illustrate how the court has over the past four decades been beset by a number of problems, principal among them being a degeneration into partisan bickering. This is compunded by a general lack of debate and an abdication of significant powers to the Law Clerks.

The author uses a number of salient issues (and accompanying cases) to illustrate his points and view of the court. The issues he chooses are: the death penalty, Abortion, and Civil rights/liberties. From these issues the author is able to convincingly illustrate how the Court has moved from its ideal conception: "We (America) have vested in the court, a broad authority to interpret the constitution in the belief that unelected and, therefore, independent judges can wield powers of reasoning, imagination, and wisdom that will raise their decisions above the trade-offs of everyday voting." (9), to a situation where it has been poisoned by the "epidemic partisanship and lack of character"(7) that characterizes the other two branches of government.
The author provides a view of the court that one may not be accustomed to. By looking at how decisions are arrived at in the court he illustrates that many more people (other than the nine Justices) play a role in the decision making process. From the administrative staff, to the support staff and in particular the Law Clerks, the author paints a picture of a living "ecosystem" where various parts interact to produce the law of the land. one of the particular argument posited by the author, the most significant and most discussed, is the ideological division of the court. The author begins by tracing the source of the current schism to the turbulent 1960's and in particular the Supreme Court under Chief Justice Earl Warren. During this period, the Court developed what the author refers to as the "Rights Revolution"(7). A revolution that brought about an increased focus on the ills of society, from segregated schools, racial discrimination, sexual privacy, and rights of the poor, criminal defendants and religious minorities. Warren’s court had no qualms with using the Court as a pulpit to rectify what it so as the moral failings of society. The perceived "judicial activism," spurred Conservatives around the nation to criticize what they so as a court that was greatly overreaching and venturing into the realm of social engineering. Conservatives so the court as a sign of the declining moral standards of the time, where crime was rampant and the judicial system falling into disrepute.
Today’s battles, the author argues, are a conflict between those (Liberals) who want to maintain the status quo developed under the Warren Court, and those who are for a counterrevolution, (Conservatives) who want to roll back the excesses of the Warren Court.

The result of the conflict has been a decline in civility, willingness to debate, development of default positions, "vote counting" and the development of centers of power among those members of the court that swing between the two poles. The author is particularly disturbed by the power that "swing" judges have, he believes that the power is too immense and contrary to America’s principal of shared power. He gives the stark example of Justice Powell, who according to statistics, was in the majority 90% of the time (222). His view was law 9 out of ten times. The swing voter consideration also increases the use of "vote counting" to ensure that one has the majority: "When a justice circulates a draft opinion, especially in a close case, he or she, is hoping for a couple of quick joins. Having a few other justices sign on to your draft right away creates a sense of momentum toward "getting a court" - Securing the crucial four other votes necessary to guarantee a majority." (62) Moreover, it creates a situation where razor thin majorities (5-4), typically decide close cases. This is obviously unacceptable.

The author also illustrates (via death penalty cases), how intractable to reason the Justices can be, he illustrates how, justices develop default positions on salient issues, and refuse to be swayed by the issues raised by a particular case (159), Justices on the extreme end of each pole, are the most susceptible to this.

The author does raise some substantial issues regarding the cleavages within the court. However, I have a number of reservations regarding his views. To begin with, it is possible that the author over emphasizes the ideological split by focusing on wedge issues such as abortion, the death penalty and affirmative action. These are issues that typically involve great partisan emotions and are unlikely to produce any common ground, or room for negotiation. Moreover, the divisions may not be a result of the Justices, unwillingness to compromise, but a result of societal pressure. From the nomination process, (where ideologues hold sway), to letters from the public and public debates on issues, the Justices are faced with very partisan situations and since Justices do not work in a vacuum, we can only expect that the schisms in society will creep into the Court.

In addition, I would argue that it is possible that the current cleavages are just part of the normal evolution of jurisprudence. The author points out the battles that existed between "The Four Horsemen"(conservatives) and "Three Musketeers" (Liberals) during the 1930's (283). The very fact that these battles existed, would lead one to conclude that the current schisms are not necessarily novel, or very destructive. They are probably the symptoms of a society that is slowly shifting to one direction (Conservative) after a period of Liberal ascendancy (the opposite would be true for the 1930's).

The authors focus on "Swing votes" is also somewhat problematic. In a country that cherishes compromise and finding the middle way, it is quite conceivable that the "Swing votes" play an essential role in ensuring a balance between the extreme forces of the Right or Left. The swing Justices, compel the other Justices to come up with more centrist opinions (as in the Webster case -400). This ensures that no particular wing has ascendancy and, therefore, the passions that develop when one party is in the minority (as in the 1930' and 60's) are tempered and moderated.

The author also gives a great deal of attention to the role of the Law Clerks. As a former clerk himself, the author has a great deal of credibility on this particular issue. He begins his discussion by giving a brief description of the job and what it entails: writing drafts of Majority or Dissents, drafting "bench" and Post-oral argument memos, commenting on draft opinions, dissents and concurrences, and critically, recommending whether to grant petitions of Certiorari and stay of executions. The Clerks are involved in virtually all the stages of decision making in the court. This gives them a great deal of power and influence: "How we (clerks) described a given case, which facts we put in and which we left out, how we characterized the competing arguments, and how insistently we put forward our own points of view - these things mattered deeply and, at least in a few instances, undeniably made the difference between life and death."
The authors principal concern with the delegation of powers to the Clerks, was that it gave the inexperienced, and often partisan Clerks and opportunity to greatly influence court decisions.(266-268). He is also concerned by the ideological conflict that persists between the Clerks - to the point that fights break out. Moreover, he argues that the Justices, by giving Clerks ability to draft opinions, and limit their work to "editing", forgo an opportunity to reevaluate the facts of the case and possibly come up with novel or different conclusions to what they were previously predisposed to. This has the effect of making the Justices sheltered and their opinions devoid of any consistency from one year to the next (272).

The author, focuses his whole assessment of the Clerks on his experience. This means that the authors views are constrained by the particular context that existed at the time. It is quite possible that the Clerks before and after his time, had a more collegial experience and did not have as much influence as he and his cohorts did. Moreover, the author downplays any positive contribution the Clerks may make: freeing the Justices of administrative tasks, providing a vessel for the Justice to sound off his/ her ideas and lessening the workload of individual justices. These are issues that the author could have raised to mitigate his overwhelmingly dim view of Clerks.

It is quite unfortunate that the author provides no real solutions to the problems he identifies. He dwells too much on the problems and not providing solutions to them. For example, would adding more Justices eliminate the problem "swing" justices? Would eliminating the position of Law Clerks be an essential way of limiting their influence? The author should have provided some possible reforms, that would ensure that the Supreme Court lived up to its ideals, and eliminated the effects of partisan politics.